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Uncharted territory? The European Charter and Fair Trial Rights

The case of ZZ v SSHD [2014] EWCA Civ 7 shows that, in certain circumstances, the European Charter may come to an individual’s rescue in terms of procedural protection even when the European Convention of Human Rights does not apply. While this news will no doubt be of concern to some sections of the media and legal establishment, ZZ is an interesting example of how domestic, Convention and Charter rights interlink. ZZ is an individual with Algerian and French nationality. In 2006 the Secretary of State refused ZZ entry to the UK pursuant to regulation 19(1) of the Immigration (European Economic Area) Regulations 2006, on the basis that his exclusion was justified on grounds of public security. His appeal against that decision lay to the Special Immigration Appeal Commission (“SIAC”), which decided his case according to a closed material procedure and dismissed the appeal in September 2008.

Closed material procedures have been challenged before, for example in Secretary of State for the Home Department v AF (No. 3) [2009] UKHL 28, which concerned control orders. In that case it was held that the right to a fair hearing under Article 6 required a minimum amount of information to be supplied to an individual in order for them to know the case against them. But it was held by Strasbourg in Maaouia v France [2000] 33 EHRR 1037 that Article 6 does not apply to immigration proceedings, primarily because it is limited to the determination of “civil rights and obligations” or a “criminal charge”.

ZZ’s case was however unusual in that because he held dual nationality, the refusal to admit him into the United Kingdom restricted the rights of free movement and residence that he enjoyed as a citizen of the European Union by virtue of his French nationality. The essential question was whether in the SIAC proceedings he had sufficient disclosure of the case against him to comply with the procedural requirements of EU law, in particular Article 47, which reads very similarly to Article 6:

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article ….”

Crucially, Article 47 is not limited to the determination of “civil rights and obligations” or a “criminal charge”.

An appeal against SIAC’s decision was heard by the Court of Appeal in early 2011. The Court dismissed the domestic law grounds of appeal but decided to refer the question of EU law to the CJEU for a preliminary ruling. The CJEU gave its judgment on that reference on 4 June 2013 (Case C-300/11). However, the CJEU’s decision was not entirely clear and led to a dispute as to its actual meaning. The Court Of Appeal deemed the CJEU’s judgment to be clear, namely that Article 47 requires a similar level of disclosure of the case against an individual as is required by Article 6. Richards LJ said at [18]:

“[I]t seems to me that the resolution of the issue before us depends on a straightforward reading of the CJEU’s judgment. In my view that judgment lays down with reasonable clarity that the essence of the grounds on which the decision was based must always be disclosed to the person concerned. That is a minimum requirement which cannot yield to the demands of national security. Nor is there anything particularly surprising about such a result in the context of restrictions on the fundamental rights of free movement and residence of Union citizens under EU law.”

ZZ therefore extends the procedural rights available to EU citizens in immigration proceedings and also fills in some of the gaps in Article 6, which has been subject to a prolific jurisprudence as concerns its application in terms of the definition of both “civil rights” and “criminal charge”. Article 47, due to its wider drafting, circumnavigates such difficulties and also applies beyond immigration proceedings, applying as it does to the violation of all rights and freedoms guaranteed by the law of the Union. Article 47 thus opens up a wider territory of fair hearing rights for EU citizens.

The full judgment in ZZ is available here. The Secretary of State is currently considering whether or not to seek permission to appeal to the Supreme Court.